Constitutional Crisis in the European Constitutional Area: Theory, Law and Politics in Hungary and Romania

370 Pages·2015·2.002 MB·English

by  Armin von Bogdandy and Pál Sonnevend

Preface
The dominant understanding of the relationship between European Union Law
and national constitutionalism has been to conceive European integration as a
threat to national constitutional values, first to fundamental rights, and later to
democracy.1 Whatever steps the framers of the Treaties or the European institu-
tions have taken, this understanding has remained alluring, particularly for high
courts all over Europe. This is well demonstrated by the series of constitutional
challenges to the European Arrest Warrant in several jurisdictions,2 and some
reactions to the Lisbon Treaty.3
Like every successful and long-living frame of understanding certain phenom-
ena, this narrative has had solid grounds in reality. How to safeguard democracy
in the framework of European integration is indeed a thorny issue. It also remains
beyond doubt that the Court of Justice of the European Union has been reluctant
to embrace the role of a supreme court with a full constitutional function. The
traditional understanding of the European Union as a functional legal order still
underlies much of its jurisprudence. The European Union certainly does not
provide a sophisticated system of fundamental rights protection, similar to that
of several national constitutions.
The present book, while not denying that there is truth in the u nderstanding
of the European integration being the threat to, and EU Member States the
protectors of, fundamental values, will lay out a very different one. It focuses on
national systemic deficiencies in respecting the founding values of Article 2 of
the Treaty on European Union (TEU). The concrete examples of Hungary and in
Romania demonstrate that this converse narrative is more than justified: Member
States being the threat to, and European institutions the possible protectors of,
fundamental rights, rule of law, and democracy.
1 For an overview see the contributions in G Martinico and O Pollicino, The National Judicial
Treatment of the ECHR and EU Laws (Groningen, Europa Law Publishing, 2010).
2 See Scott Siegel, Courts and Compliance in the European Union: The European Arrest Warrant
in National Constitutional Courts, Jean Monnet Working Paper No 5 (2008), available at http://www.
jeanmonnetprogram.org/papers/08/080501.pdf; C Grasso, The European Arrest Warrant Under the
Scrutiny of the Italian Constitutional Court (2013) 4 New Journal of European Criminal Law, 120ff;
A Torres Perez, ‘Constitutional Dialogue on the European Arrest Warrant’ (2012) 8 EuConst 105ff.
See also Decision 32/2008. (III. 12.) AB határozat (Constitutional Court of Hungary) which found
the international agreement extending the substantive rules of the European Arrest Warrant to
Iceland and Norway to be in violation of the nullum crimen principle of the Hungarian Constitution
and thus indirectly challenging the European Arrest Warrant, see http://www.mkab.hu/letoltesek/
en_0032_2008.pdf.
3 Most outspoken is the Federal German Constitutional Court, decision of 30 June 2009, BverGE
123, 267.
vi Preface
Indeed, these two understandings are not mutually exclusive, but can be com-
bined because Europe is not homogeneous. This heterogeneity requires to leave
behind the traditional, far too simplistic frame of understanding of the relation-
ship between national constitutionalism and European law. Constitutional crises
in some EU Member States highlight the need to understand EU law also, and,
given the depth of the crises, perhaps even mainly, as a chance of preserving the
core values of every constitution in Europe: democracy, the rule of law and respect
for fundamental rights.
Systemic deficiencies in the rule of law in Member States not only threaten
the foundations of the EU legal order but also rattle the trust in the core values
underlying all national constitutions in Europe. Accordingly, effective reactions
by European institutions equally serve the preservation of the foundations of the
European Union and the maintenance of the principle of the rule of law in times
of crisis in Member States. This is no threat to national constitutionalism. The
Union’s structure of competences and institutional set-up ensures that the pri-
mary responsibility for maintaining constitutional values rests with the Member
States. Equally important is, however, the understanding that constitutional crisis
may warrant common action and the effective reactions by European institutions.
The examples of Hungary and Romania indicate that, at present, European
institutions do not yet possess a sufficiently effective set of instruments to
address constitutional crisis. In Hungary, the constitutional developments of the
last few years have been marked by at least three crisis symptoms: a permanent
constitution-making by the governing majority in Parliament, a gradual dete-
rioration of the guarantees of fundamental rights, and a lack of effective checks
and balances (see Chapter 2, Pál Sonnevend, András Jakab and Lóránt Csink,
‘The Constitution as an Instrument of Everyday Party Politics: The Basic Law
of Hungary’ and Chapter 3, Kim Lane Scheppele, ‘Understanding Hungary’s
Constitutional Revolution’). The result is a constitutional system in which consti-
tutional values become freely disposable, the constitution serves everyday political
interest, and constitutional culture is in the decline (see Chapter 1, László Sólyom,
‘The Rise and Decline of Constitutional Culture in Hungary’). The problem is
exacerbated by concerns relating to the freedom of the media (see Chapter 4,
Gábor Polyák, ‘Context, Rules and Praxis of the New Hungarian Media Laws: How
Does the Media Law Affect the Structure and Functioning of Publicity?’).
Romania might, in a certain sense, face less severe difficulties in that the con-
stitution itself is not jeopardised. Yet, the separation of powers, rule of law, and
constitutionality have acquired surprisingly pliable and unstable meanings in the
current Romanian climate. Political crises easily turn into constitutional ones,
and the Romanian Constitutional Court has thus far not proven able to develop
a consistent case law to create a clear point of reference for the constitutional
system (see Chapter 5, Bogdan Iancu, ‘Separation of Powers and the Rule of Law
in Romania: The Crisis in Concepts and Contexts’). It is also argued that the 2012
events were a crisis only in relation to the intensity and the scope of the measures
Preface vii
undertaken in a relatively short period of time and that the generalised practice
of quasi-illegal political manoeuvres systemically validates further breaches of law
(see Chapter 6, Cosmina Tanasoiu, ‘Romania in the European Union: Political
Developments and the Rule of Law after Accession’).
By contrast, reactions by European institutions so far have remained rather
isolated and mostly lacked teeth. European institutions have commonly felt
trapped by a lack of appropriate competences and instruments, though this is
changing.4 With a few exceptions, only narrow issues linked to the internal market
have been targeted (see Chapter 7, Frank Hoffmeister, ‘Enforcing the EU Charter
of Fundamental Rights in Member States: How Far are Rome, Budapest and
Bucharest from Brussels?’). Institutions of the Council of Europe have addressed
a wide range of issues, yet here the enforcement mechanisms are far less effec-
tive. This is especially true for the Venice Commission which has thoroughly
dealt with a variety of questions relating to Hungary, but many of its concerns
and requests remain unanswered (see Chapter 11, Joakim Nergelius, ‘The Role
of the Venice Commission in Maintaining the Rule of Law in Hungary and in
Romania’). Although the European Court of Human Rights may develop and
apply the European Convention on Human Rights as a constitutional document
(see Chapter 9, Christoph Grabenwarter, ‘The European Convention on Human
Rights: Inherent Constitutional Tendencies and the Role of the European Court
of Human Rights’), the length of its proceedings and its focus on individual cases
prevent it from providing a sufficient answer to systemic deficiencies in the rule of
law (see Chapter 10, Mahulena Hofmann, ‘Central and Eastern European Member
States of the EU and the European Convention on Human Rights’).
This volume does not only diagnose the problems, but also makes proposals
on how to deal with the crises. For example, Article 2 TEU may serve as a basis
for judicial enforcement of the foundational values of the EU within the frame-
work of a reverse-Solange doctrine (see Chapter 8, Armin von Bogdandy, Carlino
Antpöhler, Johanna Dickschen, Simon Hentrei, Matthias Kottmann and Maja
Smrkolj, ‘A European Response to Domestic Constitutional Crisis: Advancing
the Reverse-Solange doctrine’). The European Convention on Human Rights can
be strengthened to provide a common constitutional minimum in Europe (see
Chapter 13, Tilmann Altwicker, ‘Convention Rights as Minimum Constitutional
Guarantees? The Conflict between Domestic Constitutional Law and the European
Convention on Human Rights’). Furthermore, legitimate national constitution-
making needs to respect comparative, European and international standards (see
Chapter 12, Matthias Hartwig, ‘What Legitimises a National Constitution?’). The
existence of such standards allow the concept of unconstitutional constitution
4 See European Commission presents a framework to safeguard the rule of law in the European Union
European Commission—IP/14/237, 11 March 2014, http://europa.eu/rapid/press-release_IP-14-
237_en.htm; in detail A von Bogdandy and I Ioannidis, ‘Systemic defi ciency in the rule of law’ (2014)
51 Common Market Law Review 59.
viii Preface
on the basis of core European values (see Chapter 14, Catherine Dupré, ‘The
Unconstitutional Constitution: A Timely Concept’).
Ultimately, the chapters in this volume will join in the discourse on systemic
deficiencies in Europe by demonstrating the examples that warrant this discourse,
and by indicating possible ways of addressing such deficiencies.
Heidelberg/Budapest, March 2014
Armin von Bogdandy and Pál Sonnevend
List of Contributors
Tilmann Altwicker is a lecturer at the University of Basel.
Carlino Antpöhler is a research fellow at the Max Planck Institute for Comparative
Public Law and International Law, Heidelberg.
Armin von Bogdandy is Director at the Max Planck Institute for Comparative
Public Law and International Law, Heidelberg
Lóránt Csink is an associate professor of Law at Pázmány Péter Catholic University,
Budapest, and a Head of Department at the Office of the Commissioner of
Fundamental Rights, Hungary.
Johanna Dickschen is a research fellow at the Max Planck Institute for Comparative
Public Law and International Law, Heidelberg.
Catherine Dupré is a senior lecturer at the University of Exeter.
Christoph Grabenwarter is a Professor of Public Law, Business Law and Public
International Law, Vienna University of Economics and Business Administration
and judge at the Austrian Constitutional Court.
Matthias Hartwig is a research fellow at the Max Planck Institute for Comparative
Public Law and International Law, Heidelberg.
Simon Hentrei is a research fellow at the Max Planck Institute for Comparative
Public Law and International Law, Heidelberg.
Frank Hoffmeister is the Deputy Head of Cabinet in Commissioner De Gucht’s
Cabinet.
Mahulena Hofmann is a professor at the Faculty of Law, Economics and Finance,
University of Luxembourg and the SES Chair in Satellite Communications and
Media Law.
Bogdan Iancu is an associate professor (Comparative Constitutional Law and
Constitutional Theory), University of Bucharest, Faculty of Political Science
András Jakab is Schumpeter Fellow at the Max Planck Institute for Comparative
Public Law and International Law in Heidelberg, and the Director of the Institute
for Legal Studies at the Centre for Social Sciences of the Hungarian Academy of
Sciences in Budapest.
Matthias Kottmann is an attorney and was a research fellow at the Max Planck
Institute for Comparative Public Law and International Law.
xii List of Contributors
Joakim Nergelius is a professor at Örebro University School of Law, Psychology
and Social Work.
Gábor Polyák is an associate professor at the University of Pécs.
Kim Lane Scheppele is the Rockefeller Professor of Sociology and International
Affairs, as well as the Director of the Program in Law and Public Affairs, at
Princeton University, and also a Faculty Fellow at the University of Pennsylvania
Law School.
Maja Smrkolj is a research fellow at the Max Planck Institute for Comparative
Public Law and International Law, Heidelberg.
László Sólyom was President of Hungary from 2005 until 2010. Previously he was
president of the Constitutional Court of Hungary from 1990 to 1998.
Pál Sonnevend is a Professor of European and International Law at ELTE
University Faculty of Law.
Cosmina Tanasoiu is an Associate Professor of Comparative European Politics at
American University in Bulgaria, Department of Politics and European Studies.
1
The Rise and Decline of Constitutional
Culture in Hungary
LÁSZLÓ SÓLYOM
I. THE RISE
A. Why Recall the Short History of Constitutional Culture in Hungary?
W
E ARE AT a turning point in the history of Hungarian constitutional-
ism, when its achievements have been endangered. To use T.S. Eliot’s
words, in this time of distress of nations and perplexity it may be
useful to recall the formative period of Hungarian constitutional culture, when
the scene was set in the 1990s. I do that not in order to show what could be lost.
Rather I search into the source from which the vitality of constitutional cul-
ture draws. Obviously, it must have inner resources of its own. Yet there was an
original intertwining, too, the embedding of Hungarian constitutionalism into
international constitutional culture, professional and cultural impacts that had
standardising effects, and also mutuality that nourished this culture. After 20
years the context is different. But under the present demolition of what has been
built so ambitiously and carefully since the democratic change, identification of
determinative traits of that constitutional development is crucial. It helps to form
a clear picture of the present situation. Furthermore, one can see which factors
may be vital for the survival of constitutionality. Even the differences of the two
époques will be instructive.
Thus, this chapter will enlarge upon two subjects. First I describe the for-
mation of constitutionalism in Hungary, especially the influence of examples
from abroad. The taking over and adaptive reshaping of foreign legal materials,
doctrine and norms and the active integration into the European constitu-
tional culture I will call this ‘reception’, hoping that this shorthand expression
will not hide the complexity of the process. The remote reference to once
receiving Roman law may even recall that complexity. Then I touch upon the
topical question of the life expectancies of constitutional cultures founded on
this basis.
6 László Sólyom
B. ‘Reception’ of European Constitutionalism
As to my first subject, the so-called reception, we have scholarly works written
on it, among others, by contributors to this volume. Catherine Dupré pre-
sented a book on the Hungarian Constitutional Court and the German
Bundesverfassungsgericht. Kim Scheppele wrote on the ‘supranational constitu-
tionalism’ of the Hungarian Court. Pál Sonnevend compared the constitutional
status of the right to property and social rights in Germany and Hungary.1 First,
I would like to reinforce the usefulness of dealing with this already historical
subject, reception. It does have relevance to today’s discussions. We may see it as
an example of the meeting of constitutional cultures, and the manner in which
this worked. It embraced both taking over foreign legal materials and undertaking
international obligations. We can also see the power of domestic legal traditions
and, at the same time, the political importance of international embeddings. One
can discover how steps of constitutional development repeat themselves, in many
cases without knowing their predecessors, but in other cases explicitly as if fol-
lowing a model. And if we consider that in the history of the great ideals for the
new constitutional courts there also have been periods of political pressure and
temporary decay, there may be lessons to be drawn as to realistic expectations
about the present situation in Hungary.
Reception is a subject strongly capable of feeding myths around constitutional
justice. It is similar to the saga of the ‘three generations of European constitutional
courts’. These two are interlinked: the time of reception has shortened exponen-
tially from generation to generation. It is then supposed that the legal material has
been taken over from the previous generation. The proliferating new generations
join the older ones more and more rapidly and a common constitutional culture
spreads in this way. This supposition is, on the one hand, realistic, even natural.
On the other hand, it needs correction. We shall look at the latter.
C. Correcting the ‘Three Generations of Constitutional Courts’ Schema
Looking at the development of constitutional review in Europe as the emergence
of three generations of constitutional courts—the German, Iberian and post-
communist countries’ constitutional courts—has by now become general wis-
dom. A bon mot of Roman Herzog made the three generation concept popular.
The former President of the Bundesverfassungsgericht claimed that the Spanish
1 C Dupré, Importing the Law in Post-Communist Transitions: The Hungarian Constitutional Court
and the Right to Human Dignity (Oxford, Hart, 2003); KL Scheppele, ‘Constitutional Negotiations:
Political Contexts of Judicial Activism in Post-Soviet Europe’ (2003) 18 International Sociology 219;
P Sonnevend, Eigentumsschutz und Sozialversicherung: Eine rechtsvergleichende Analyse anhand der
Rechtsprechung des Bundesverfassungsgerichts und des ungarischen Verfassungsgerichts (Berlin, Springer,
2008).
Rise and Decline of Constitutional Culture in Hungary 7
and Portuguese courts were the daughters of Karlsruhe, and the Polish and
Hungarian courts, the granddaughters.
It is similarly accepted that all three generations are inseparable from demo-
cratic changes. Moreover, the constitutional courts were seen, and they regarded
themselves, as symbols and guarantors of the new, democratic system. This
connection was well known and consciously used by the German, Italian and
Austrian constitutional courts even in the beginning as, before the birth of the
‘classic’ second generation courts in Spain and Portugal, in 1972 they established
the originally four-member Conference of the European Constitutional Courts
in order to promote democratic development in Yugoslavia. The link between
democratic change and constitutional justice today has become institutionalised.
The Council of Europe considers the existence of a constitutional court as proof
of the rule of law and has made it a membership criterion as regards the post-
Soviet republics.
However, the democratic changes were of a different nature in the case of each
generation. In Germany and Italy, the Nazi and Fascist regimes were destroyed
in a war and democracy was set up from a level of zero under the tutelage of the
victors. Yet the change from the Fascist regimes of Franco and Salazar in Spain
and Portugal into democracy in the 1970s was a ‘peaceful transition’, as was two
decades later the ‘velvet revolutions’ in the communist dominated Central and
East-European states and indeed, in parts of the former Soviet Union. The insti-
tutions of the ancient regime were not abolished nor were its political players
banned.
What is more, the system change in Poland and Hungary was based on negotia-
tions between the Communist Party and the democratic opposition. Especially in
Hungary, the system change was based on the principle of legality: each step of
the negotiated revolution had to have a clear legal ground, and in 1989 the new
democratic constitutional changes were issued by the still communist-dominated
Parliament, before the free elections. So the new regime started with contradic-
tions between many mechanisms of formal and institutional continuity and,
at the same time, with the presence of decisive, radical and indeed revolution-
ary change as regards the substance of the law, the state and the economy. The
Hungarian Constitutional Court expressed this situation by the phrase ‘revolution
under the rule of law’.2
This historical peculiarity had paradoxical consequences for the
Constitutional Court, as well. For instance, not all constitutional judges were
chosen from dissidents to the old regime, as was the case in Germany, where
2 11/1992 (III.5) AB határozat (Constitutional Court of Hungary) (Decision 11/1992). Translations
of the most important decisions of the fi rst Constitutional Court (1990–98) can be found in L Sólyom
and G Brunner, Constitutional Judiciary in a New Democracy: The Hungarian Constitutional Court
(Ann Arbor, MI, University of Michigan Press, 2000), accompanied by two introductory studies and
headnotes. As for Decision 11/1992 see ibid 214, 221. For a more extended selection of judgments from
1990–93 in German see G Bunner and L Sólyom, Verfassungsgerichtsbarkeit in Ungarn: Analysen und
Entscheidungssammlung 1990–1993 (Baden-Baden, Nomos Verlagsgesellschaft, 1995).
8 László Sólyom
the election of many former emigrants gave additional symbolic force to the
first Bundesverfassungsgericht. On the other hand, even the compromises in
the transition helped the Constitutional Court to appear as a symbol of the new
regime. The majoritarian institutions of the democratic state had predecessors
in the old system where they were corrupted and misused. The Constitutional
Court was, in contrast, totally new, created for the new regime, free from inher-
ited distrust. The Court also benefited from the in itself negative trait of the
pioneering countries of democratisation in that they started with amendments
of the Constitution and reached a formal new constitution later.3 In such a situ-
ation, the Constitutional Court represented the new constitutional order even
in the absence of a formally new constitution, and in fact it performed that role
through its creative and extensive interpretation of the constitutional rules. The
text of the Constitution was negotiated at the National Round Table in a hurry,
and thus it was partly based on not always correct translations of international
agreements and contained gaps and inconsistencies. This created occasions for
developing and enforcing unwritten principles and filling gaps with new rules by
the Constitutional Court.
Furthermore, the second and third generation courts immediately obtained the
high status of a constitutional court as ‘constitutional organ’, that is, an equal rank
to the parliament and government that in the 1950s the German Constitutional
Court had with some trouble fought out for itself.4
As a final remark regarding the three generations, one can see that the family
members turned out to be very different. This is especially true for the populous
cohort of the post-communist courts. The mere existence of a constitutional
court says little about the role and performance of the court, or of the quality of
democracy, in a given state.5
D. Revival of the Kelsenial Model and its Consequences
While accepting the three generations schema one must not forget that even
the ‘grandfather’, the German Federal Constitutional Court, must have had
a father. For Europe, the great ancestor is surely the Austrian Constitutional
Court, which was set up in 1921. This was the first constitutional court in
3 In 1989, the Round Table Negotiations in Hungary drafted the text of a brand new Constitution
that was, however, passed on political grounds as an amendment of the communist Constitution. In
Poland, the ‘Small Constitution’, which contained the inevitable amendments to the system change,
was replaced only in 1997 by a new Constitution. In Hungary a formally new Constitution was passed
as late as 2011.
4 Cf the texts of the famous ‘Statusbericht’ and the ‘Statusdenkschrift’ with further documents on
the struggle between the Constitutional Court and the Federal Government in G Leibholz, ‘Der Status
des Bundesverfassungsgerichts’ (1957) 6 Jahrbuch des öffentlichen Rechts 109.
5 This has become a formal proof for the democratic character of a state, see n 2 above. The
Conference of the European Constitutional Courts does not evaluate the members, either. The mem-
bership criterion is the power to review and annul Acts of Parliament.